Improving Access to Post-Conviction DNA Testing, The Justice Project, 2008
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THE JUSTICE PROJECT Improving Access to Post-Conviction DNA Testing Kirk Noble Bloodsworth spent A Policy Review almost nine years in prison . for the rape and murder of . nine-year-old Dawn Hamilton before DNA testing proved . he did not commit the crime. To date, more than two-hundred wrongfully convicted people . have been exonerated through post-conviction DNA testing. Introduction............................................... 1 Problems & Solutions............................ 2 The Legal Landscape............................ 5 Benefits & Costs...................................... 8 Profiles of Injustice................................. 9 Snapshots of Success......................... 13 Voices of Support................................ 14 Questions & Answers......................... 16 A Model Policy...................................... 17 Statistics................................................... 24 Literature. ................................................ 24 EDUCATION FUND “When innocent people are convicted and the guilty are permitted to walk free, any meaningful reform effort must consider the root causes of these wrongful convictions and take steps to address them.” —P atrick L eahy S enior U nited S tates S enator from V ermont THE JUSTICE PROJECT EDUCATION FUND INTRODUCTION D NA testing is a remarkable technology that has counsel for post-conviction DNA testing petitioners. developed rapidly since the first accurate descripThe federal government recognized the importion of DNA in 1953 by scientists James Watson and tance of post-conviction DNA testing with the Francis Crick. DNA has emerged as a highly reliable passage and signing into law of the Innocence source of information and a powerful tool for proving Protection Act on October 30, 2004.1 Included in guilt and innocence. Its the Innocence Protection many benefits are becomAct (IPA) is a post-conThe Justice Project Recommendations: ing increasingly clear viction DNA testing pro•.States.should.require.the.preservation. to courts, prosecutors, gram that authorizes $25 of.biological.evidence.throughout. defense counsel, and to million over five years the public. Post-convicto help states defray the a.defendant’s.sentence.and.devise. tion DNA testing gives costs of post-conviction standards.regarding.custody.of.evidence.. those who have been DNA testing.2 The pro•.States.should.ensure.that.all.inmates. wrongfully convicted an gram is named after Kirk with.a.DNA-based.innocence.claim.may. opportunity for relief, and Bloodsworth, the first petition.for.DNA.testing.at.any.time.and. has been used to exondeath row inmate whose without.regard.to.plea,.confession,.selferate over two-hundred innocence was proven implication,.the.nature.of.the.crime,.or. innocent people in the by DNA analysis. The previous.unfavorable.test.results. United States. DNA testtime is right for states to ing also makes possible follow the federal gov•.States.should.require.judges.to.grant. the prosecution of “cold” ernment’s lead in passpost-conviction.testing.petitions.when. cases, and many states are ing comprehensive posttesting.may.produce.new.material. establishing DNA dataconviction DNA testing evidence.that.raises.a.reasonable. banks for convicted fellaws. Expanding postprobability.of.the.petitioner’s.innocence. ons to find new leads in conviction DNA testing or.reduced.culpability.. old cases. contributes to a more Without post-conaccurate criminal justice •.States.should.ensure.that.petitioners. viction DNA testing, it system and restores pubhave.access.to.objective.and.reliable. is likely that the more lic confidence in the abilforensic.analysis.at.independent.and. than two-hundred DNA ity of the system to corprivately.funded.labs,.subject.to.judicial. exonerees would still be rect its own errors. approval. in prison today. A majorWhile DNA testing •.States.should.provide.counsel.and.cover. ity were convicted before has become the new gold the.cost.of.post-conviction.DNA.testing. DNA testing could have standard for determinin.cases.where.a.petitioner.is.indigent. proven their innocence ing guilt or innocence, it in court. Some of them does not necessarily solve •.States.should.standardize.post-testing. would still be awaiting the problems of wrongprocedures.for.cases.that.produce. execution, or would have ful convictions. The vast testing.results.favorable.to.a.petitioner. been executed, for crimes majority of criminal cases they did not commit. As do not include biologiof June 2008, all but seven states have laws addresscal evidence that could definitively determine the ing post-conviction DNA testing. Many states’ laws, identity of the perpetrator through such an accurate however, are too lax in their standards for preserving testing method. Still, where such evidence is availevidence, and the windows in which a defendant can able and can provide compelling information about a introduce “new evidence” are often unduly narrow. criminal offense, justice demands that DNA testing Furthermore, most state laws fail to provide adequate be conducted. 1 w w w . T H e J u S T I C e P r o J e C T. o r g THE JUSTICE PROJECT The Justice Project has developed this policy review to facilitate communications among the legal community, local law enforcement agencies, policymakers, the public, and others by explaining the problems surrounding post-conviction DNA testing, EDUCATION FUND and by recommending positive reforms that can significantly improve its practice. By implementing the reforms recommended in this policy review, states can significantly increase fairness and accuracy in the criminal justice system. PROBLEMS & SOLUTIONS T he passage of post-conviction DNA testing their laws. The following reforms will allow states to statutes acknowledges the serious flaws in our remedy many of their failures to do justice. system of justice while providing an opportunity to increase the credibility and quality of the system. States should require the preservation of In 2004, Congress passed the Innocence Protection biological evidence throughout a defendant’s Act (IPA), which authorizes federal funding to states sentence and devise standards regarding whose programs comply with certain requirements custody of evidence. of the Act. While the Innocence Protection Act put The loss or destruction of DNA evidence jeopthe federal government at the forefront of post-conardizes the integrity of the criminal justice system. viction DNA testing, there are still seven states that After spending twelve years in prison, Kevin Byrd was do not have post-conviction DNA testing statutes.3 exonerated based on DNA evidence. At the time of his Of the states that do have exoneration and pardon, thenpost-conviction DNA testing Governor George W. Bush said The loss or destruction of statutes, many limit access to he expected Byrd’s to be the DNA evidence jeopardizes post-conviction DNA testing first of many re-examinations by allowing the destruction of old cases using preserved the integrity of the criminal of evidence or unreasonably DNA evidence. However, withjustice system. limiting the conditions under in a week, evidence custodians which a defendant can petition at the Harris County Clerk’s 4 for testing. In some states, innocent people remain office willfully destroyed at least fifty old rape kits in imprisoned due to legal and bureaucratic hurdles storage, making any relief for others wrongfully conthat prevent post-conviction DNA testing. In Idaho, victed extraordinarily difficult, if not impossible.6 The for example, a defendant only has one year to file a Supreme Court had ruled in Arizonav.Youngblood that 5 post-conviction DNA testing petition. Historically, loss or destruction of evidence is a violation of due courts have limited the amount of time one can petiprocess if it is done in an act of “bad faith.” 7 However, tion for relief because “new evidence” has traditionTexas and federal law sanctioning the destruction of ally become less reliable as time lapses. DNA evithese kits effectively precluded any claim that the dence is different. In fact, DNA evidence can last for destruction was an act of “bad faith” as well as any decades, and can be used to prove guilt or innocence judicial censure on those grounds. Mr. Byrd’s own with greater accuracy long after cases close. Statutes evidence had been slated to be destroyed before it was that limit accessibility to such powerful evidence tested. Whether due to a filing error or an unknown compromise the fairness and accuracy of our criminal party’s intentional intervention, his evidence was saved, justice system. and it proved his innocence. Statutes requiring preserStates should enact laws requiring the most vation of evidence would significantly expand opporexpansive use of DNA evidence possible. States with tunities to correct otherwise irreversible errors. post-conviction DNA testing statutes that create barCurrently, all but twelve states (and the District riers to accessibility of such evidence should revise of Columbia) lack statutes requiring the preservation 2 w w w . T H e J u S T I C e P r o J e C T. o r g THE JUSTICE PROJECT of evidence throughout an inmate’s incarceration.8 Even in states with such statutes on the books, rules regarding the preservation of evidence are often ignored. In New York City, for example, despite the support of prosecutors for post-conviction DNA testing, such testing did not happen in several cases because evidence had been lost.9 States must require that evidence be preserved and catalogued throughout an inmate’s sentence, and destroyed only upon written permission from the defendant or the defendant’s attorney. States should also devise standards regarding the proper collection and retention of biological evidence, and administer training programs for those charged with evidence preservation. It is essential that the chain of custody over DNA evidence be documented as long as evidence is preserved to ensure that DNA evidence is accessible and has not been tampered with or otherwise altered. EDUCATION FUND analysis (RFLP), matched a suspect to DNA at the rate of one in many millions, but required relatively large and well-preserved samples and took up to six weeks to analyze. The short tandem repeat test (STR), developed in the late 1990s, could be performed on much smaller samples. Furthermore, with match rates of up to one in a trillion, STR tests are more discriminating than the older RFLP tests. They can therefore exclude more suspects as the source of crime-scene DNA and prove the innocence of wrongfully incarcerated individuals where RFLP tests could not.13 Because DNA testing technology continues to improve, a defendant’s right to request testing must not be subject to time limitations. If new technology has been developed that might change the outcome of a test, it is necessary to perform a new test. States should require judges to grant postconviction testing petitions when testing may produce new material evidence that raises a reasonable probability of the petitioner’s innocence or reduced culpability. Unclear or extraordinarily complex standards to initiate testing often limit a petitioner’s ability to prove his or her innocence. In states without testing statutes, standards for gaining access to DNA testing are inconsistent; statutes are not the only means to secure testing, but without statutes wrongfully convicted prisoners have few reliable and consistent opportunities available to use DNA to prove their innocence.14 States should enact statutes specifying the procedures a court is to follow when a defendant files a petition for DNA testing, in order to reduce administrative mistakes, increase efficiency, and codify this essential process. In determining whether to permit DNA testing, a judge should consider whether the results of DNA testing are materially relevant to a claim of innocence and/or might lead to a lesser sentence. If the court determines there is reasonable probability that the results will meet one of these criteria, post-conviction DNA testing should be performed. While there are a number of states that require a defendant simply to show that post-conviction DNA testing could provide new, relevant evidence, there are also many that require the defendant to prove that the results of DNA testing would conclusively demonstrate their innocence. Because few courts or States should ensure that all inmates with a DNA-based innocence claim may petition for DNA testing at any time and without regard to plea, confession, self-implication, the nature of the crime, or previous unfavorable test results. Limiting access to post-conviction DNA testing on the basis of a plea, confession, or previous unfavorable test result undermines the fairness and accuracy of the criminal justice system. Excluding defendants who confessed or pled guilty does not take into account evidence that many false confessions and even some plea bargains are obtained from innocent people.10 Nearly a dozen of the more than two-hundred DNA exonerees in the United States initially pled guilty, and fifty of the first two-hundred purportedly confessed to crimes that they did not commit.11 When test results could be probative of guilt or innocence, or are relevant to a sentencing determination, defendants must be permitted to petition for post-conviction DNA testing regardless of their pre-trial plea or confession. Time limitations on a wrongfully convicted person’s right to petition for DNA testing do not reflect technological changes that have occurred or may occur. Without proper preservation requirements, exculpatory DNA evidence might only be found after many years have elapsed and new technology has developed.12 The original method used to test DNA, Restriction Fragment Length Polymorphism w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND juries rely entirely on one piece of biological eviforensic science commission and requiring federal dence for a conviction, such standards make it diflaboratories to undergo frequent audits.19 States ficult to petition successfully for testing. should follow the federal government’s lead by creatThe Innocence Protection Act specifies that posting standards and regulations to increase and mainconviction DNA testing should be performed if it tain the objectivity, reliability, accuracy, and efficiency may produce new material evidence that would “raise of forensic laboratories, and ensure that forensic a reasonable probability that analysis is performed in accorthe applicant did not commit dance with the highest scien“[T]he criminal justice the offense.”15 Senator Patrick tific standards. Ideally, a stateLeahy, co-sponsor of the IPA, run oversight board would set system should err on the commented that this standard and enforce standards for laboside of permitting testing, reflects “the principle that the ratory accreditation. A good in light of the low cost of criminal justice system should accreditation program should err on the side of permitting provide an independent review DNA testing and the high testing, in light of the low cost of management practices and cost of keeping the wrong of DNA testing and the high lab policies, while taking steps person locked up.” cost of keeping the wrong perto ensure that testing and analson locked up.”16 States should ysis are performed accurately. —Senator Patrick Leahy follow the federal model for An evidence tracking system allowing DNA testing, which should be implemented to is less cumbersome and allows more opportunities for allow easy access to evidence at all times. those wrongfully convicted to prove their innocence. To best ensure the objectivity and reliability of forensic analysis, laboratories should be independent States should ensure that petitioners have from the jurisdiction or control of law enforcement access to objective and reliable forensic or any prosecutorial body. Some states have already analysis at independent and privately funded adopted this reform.20 A defendant should have labs, subject to judicial approval. access to independent forensic experts of his or her Due to the high levels of credibility that forenchoosing, subject to the agreement of the prosecutor sic testimony has with jurors, erroneous or misand the approval of the court. If the parties cannot leading forensic science severely undermines the agree on a laboratory, the court should designate a fairness and accuracy of criminal trials. A recent testing facility and provide parties with a reasonable independent investigation found that analysts at the opportunity to show cause for the court to allow testHouston crime lab repeatedly tested DNA samples ing to be performed at their preferred facility. incorrectly and, in some cases, made up results withTimeliness requirements must be a compo17 out actually testing evidence. The special investinent of any comprehensive post-conviction statute. gator hired to examine the lab’s work recommended Statutes that require DNA testing to be done “as retests of many cases, which so far have proven the soon as practicable,” such as North Carolina’s, are innocence of three men who were wrongfully congood models.21 States should ensure that rapid testvicted by incorrect testing and misleading or false ing is practicable by eliminating any backlog of evianalyst testimony.18 dence waiting to be tested. Most states lack statutory standards for forensics laboratories to prevent wrongful conviction as a States should provide counsel and cover the result of incorrect or improperly conducted tests. cost of post-conviction DNA testing in cases At the federal level, Congress acknowledged the where a petitioner is indigent. need for forensics reform by passing the Justice for The complexity of the petitioning process creAll Act of 2004. The bill directly addresses the need ates an unreasonable burden for a wrongfully confor forensic oversight, instructing the U.S. Attorney victed person who needs DNA testing to prove his General to create and appoint members to a federal or her innocence. The National Institute of Justice 4 w w w . T H e J u S T I C e P r o J e C T. o r g THE JUSTICE PROJECT issued a report outlining appropriate steps in filing a petition for post-conviction DNA testing, which include but are not limited to: (1) gathering trial transcripts, laboratory reports, police reports, appellate briefs, post-conviction briefs, and evidence collection lists; (2) investigating and searching for evidence; (3) sending letters to ask custodial authorities to preserve evidence; (4) consulting with prosecutors; (5) learning procedures for executive clemency; (6) deciding on a laboratory and method of testing; (7) establishing a chain of custody; and (8) learning the law in the relevant state.22 As one scholar notes, “[i]ndigent inmates serving hard time may not have the resources or access to counsel to gather the necessary materials expeditiously.”23 The task is difficult even for experienced advocates. Relegating this job to petitioners creates a barrier to seeking truth and finding justice. Furthermore, without a lawyer, many petitioners may not know the full extent of their rights for post-conviction DNA testing. They may assume that their time for testing has run out, or that their DNA samples have been discarded. For a petitioner without a lawyer, the nominal ability to petition for post-conviction DNA testing will be practically meaningless. States must provide legal counsel to indigent petitioners to help navigate the complex process. Generally, states that have post-conviction DNA testing laws have been reasonable about providing testing to all eligible inmates regardless of financial circumstances, but some state statutes are silent on EDUCATION FUND the matter. If an individual cannot pay for DNA testing, the state has an obligation to cover the costs. States should standardize post-testing procedures for cases that produce testing results favorable to a petitioner. Even when the results of DNA testing conclusively show that the petitioner is innocent, he or she may remain in legal limbo that further delays fairness in the criminal justice system. Because DNA testing statutes in some states do not provide for any type of post-testing procedure, states may neglect to identify the true perpetrator of the crime, or even continue to imprison an innocent individual. An in-depth study of the first two hundred individuals exonerated by DNA testing found that “[f]orty-one (or twenty-one percent) received a pardon from their state executive, often because they lacked any available judicial forum for relief.”24 States must enact policies governing the action a court should take following testing that produces favorable results to the petitioner. The court should schedule a hearing to determine the appropriate relief to be granted, whether it is an order granting a new hearing, an order releasing the petitioner from custody, or an order to address the urgent need for relief as the situation may require. Once DNA testing has proven a petitioner’s innocence, relief should be provided as soon as possible. States must institute procedures to allow an innocent person relief in an expeditious manner. THE LEGAL LANDSCAPE W hen DNA evidence was first introduced into the criminal justice system, many regarded it as a powerful tool to assist prosecutors in convicting and incarcerating the guilty. DNA evidence has also gained attention as a remarkable method of proving the innocence of the wrongfully convicted. DNA plays a vital role in exonerations, thus it is important to understand how this issue has developed in the legal field and the consequent impact of the judicial debate on post-conviction DNA testing. FEDERAL APPROACH By 1996, post-conviction DNA testing had become a prominent issue in the legal community. As a result, the U.S. Department of Justice published a report detailing the stories of twenty-eight men who were exonerated based on post-conviction DNA testing.25 The report drew serious attention from both the scientific and the criminal justice communities. Consequently, Attorney General Janet Reno established the National Commission on the Future of DNA Evidence “to identify ways to maximize the w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND value of DNA in our criminal justice system” and to destroyed.33 On the other hand, in Youngblood, the test provide recommendations for prosecutors, defense is not centered on the probative value of the destroyed attorneys, and judges on how to handle requests for evidence but rather on the government’s actions and post-conviction DNA testing.26 While these stanthe circumstances surrounding the destruction of the dards were only recommendations, they provided evidence.34 The Youngblood ruling held that due process guidance that ultimately shaped some state legislais not violated unless the defendant can show that the tion and, when not mandated by state law itself, were loss or destruction of evidence is an act of “bad faith.”35 27 adopted by many prosecutors’ offices. The bad faith standard is nearly impossible to prove In 2000, Senator Patrick Leahy introduced the and the three dissenting Justices in the case pointed Innocence Protection Act (IPA) in Congress. While out that the line between good faith and bad faith is the IPA incorporated many of the recommendations often difficult to judge.36 Proof that the party responpromulgated by the Justice Department Commission, sible for the destruction of evidence acted in bad faith it also put forth unique standards aimed at addressing has been elusive for most defendants. In the twelve weaknesses in the Commission’s years following the ruling, only recommendations. Most notathree decisions were published The Innocence Protection bly, the IPA proposed a uniin which a judge ruled that Act provides access to form national standard for bad faith was a factor, and thus access to DNA testing and for violated the defendant’s right to post-conviction DNA procedures that courts should due process.37 testing in federal cases follow when confronted with exculpatory post-conviction Federal Courts and, with some exceptions, DNA evidence.28 On October Although circuit courts prohibits the destruction of 30, 2004 the IPA was signed have been reluctant to address DNA evidence in a federal into law.29 Among other provithe issue of requests for postsions, the IPA provides access conviction DNA testing, one case while a defendant to post-conviction DNA testcase in particular demonstrates remains incarcerated. ing in federal cases and, with the need for legislative action to some exceptions, prohibits the ensure proper procedural safedestruction of DNA evidence in a federal case while guards. In Harveyv.Horan Harveyv.Horan, petitioner James Harvey a defendant remains incarcerated.30 The IPA also requested access to the biological evidence from his established the Kirk Bloodsworth Post-Conviction case being held by the Commonwealth of Virginia.38 DNA Testing Program, which awards grants to states Although the evidence had been previously tested in order to help defray the costs of post-conviction using the procedures that were available at the time of DNA testing.31 his trial in 1990, Harvey sought access to the evidence in order to have it retested using more advanced techCOURTS’ APPROACH nology. The Fairfax County Commonwealth Attorney Supreme Court refused to turn over the evidence. The Fourth Circuit Lower courts have looked to the Supreme Court upheld the Commonwealth’s Attorney’s action, holdfor guidance over the issue of DNA preservation, ing that Harvey’s request for post-conviction DNA specifically in California v. Trombetta and Arizona v. testing did not apply to the limited purposes of Youngblood.32 While both cases present doctrines that section 1983 claims under U.S. Code, which are define when due process mandates evidence preservaintended to redress constitutional and federal statute tion, the cases differ on how to determine when the violations, neither of which Harvey claimed were destruction of evidence constitutes a violation of a defenviolated.39 While the Fourth Circuit denied Harvey’s dant’s right to due process. In Trombetta, the Supreme request, the court noted that criminal defendants Court formulated a test that focuses on the probative should not be precluded from “avail[ing] themselves value of the destroyed evidence and whether apparent of advances in technology.”40 The court further stated exculpatory value existed in that evidence before it was that “if this entitlement is to be conferred, it should 6 w w w . T H e J u S T I C e P r o J e C T. o r g THE JUSTICE PROJECT EDUCATION FUND be accomplished by legislative action rather than by a federal court as a matter of constitutional right.”41 the Iowa Supreme Court held that post-conviction DNA testing was not newly discovered evidence since some form of serological testing existed at trial and State Courts the defense failed to use it.49 The court noted that New York State courts were among the first in order for evidence to be considered newly discovto deal with the issue of how to classify requests ered, the evidence must not only be relevant but also by inmates for post-conviction DNA testing and likely to change the case’s outcome.50 Even in states to provide post-conviction DNA testing by statlike New York, where courts had previously held that ute. In 1990, New York’s Supreme Court, held in requests for post-conviction DNA testing constituted Dabbsv.Vergari that Charles Dabbs was allowed to “newly discovered evidence,” the New York Supreme conduct post-conviction DNA testing, finding that Court, Appellate Division held that it was not new Dabbs’ request should be treated as a post-conviction evidence when some form of testing had existed at the motion for discovery.42 The court pointed to Brady time of trial, but the defense did not use it.51 v.Maryland noting that “notIllinois, the second state withstanding the absence of a to provide post-conviction New York State courts were statutory right to post-convicDNA testing by statute, also among the first to deal with tion discovery, a defendant has contributed significantly to a constitutional right to be case law in favor of a defenthe issue of how to classify informed of exculpatory infordant’s right to post-conviction requests by inmates for mation known by the state.”43 DNA testing. In 1996, the Based on the DNA evidence, Illinois Supreme Court found post-conviction testing and which rendered exculpatory that newly discovered evito provide post-conviction results, Dabbs was exonerated dence that shows a defendant DNA testing by statute. nine years after his convicis actually innocent is within tion.44 Following Dabbs the the jurisdiction of the court as Suffolk County Court held in People v. Callace that a matter of due process.52 while Brady was not applicable to Callace’s case, postIn 1999, the South Dakota Supreme Court was conviction DNA testing could be classified as “newly also confronted with the issue of requests for postdiscovered evidence” since DNA analysis was not conviction DNA testing.53 The petitioner, who was 45 available for the defendant at the time of trial. convicted of murder and sentenced to life in prison, After Dabbs, other states began dealing with the moved for post-conviction discovery in order to issue of requests for post-conviction DNA testing. obtain access to evidence that had been microscopicalIn 1991, the New Jersey Superior Court Appellate ly examined during his trial, but had not been tested Division granted a defendant the chance to conduct using DNA analysis.54 Because South Dakota lacked a post-conviction DNA testing based on recent develstatute establishing a procedural right to post-convicopments in the scientific and judicial community.46 In tion DNA testing, the court had to promulgate a judi1992, Indiana’s Appellate Court held that the defendant cial rule and denied the petition for post-conviction was entitled to post-conviction DNA testing based on DNA testing, finding “no likelihood that a favorable the fact that the defendant did not have access to the DNA test result of the hair and blood evidence would testing at trial.47 Also in 1992, Pennsylvania’s Superior produce an acquittal if a new trial was granted.”55 Court vacated the defendant’s conviction, and ordered States should not rely on the inconsistent and often the state to conduct DNA analysis.48 arbitrary approaches state courts have taken toward Requests for post-conviction DNA testing inipost-conviction DNA testing. Since 1997, forty-three tially proceeded on a case-by-case basis. Some courts states (and the District of Columbia) have passed postclassified the post-conviction DNA testing as newly conviction DNA testing statutes. But many of these discovered evidence while others did not, especially statutes need improvement. All states should enact in cases in which the defendant could have had access statutes that ensure consistent, meaningful, and effecto testing at the time of trial. For example, in 1994 tive access to post-conviction DNA testing. 7 w w w . T H e J u S T I C e P r o J e C T. o r g THE JUSTICE PROJECT EDUCATION FUND BENEFITS & COSTS A the intervening years.”58 Every wrongful conviction undermines the justice and fairness that citizens expect from the American judicial system. s with any good policy, the benefits of postconviction DNA testing statutes outweigh the costs. While post-conviction DNA testing statutes require states to incur initial costs, the costs are minimal and could end up saving states money in the long run. BENEFITS OF REFORM Post-conviction DNA testing provides an outlet—often the only outlet—through which defenCOSTS OF WRONGFUL CONVICTION dants can prove their innocence. If a piece of retested The most obvious cost of a judicial system withevidence reveals a new DNA profile that does not out post-conviction DNA testing is the denial of match the petitioner’s, not only can the defendant be justice for innocent prisoners. Many exonerees lose released or at least granted a new trial, but the new more than years of their life behind bars. profile can be run through the FBI’s nationwide DNA Families of the wrongfully database, the Combined DNA convicted also bear an intense Index System (or CODIS). If The main costs of postburden. While Clarence Elkins the true perpetrator has been spent seven years in prison after arrested since 1994, when the conviction DNA testing being wrongfully convicted, his DNA Identification Act passed, reform are threefold: the wife, Melinda, led a public camhis DNA may be in the datapaign to uncover the truth, and base, enabling police officers costs accrued by the time his two sons assigned themto identify him with a so-called judges and clerks spend selves night watchmen duties at “cold hit.” Conversely, if a in court, the laboratory their home because they were defendant was convicted before afraid that the real killer might 1994 and has a piece of evitesting fees, and the come to silence their mother.56 dence retested, his DNA will physical space to store Wrongful convictions also probe added to the database. Even forensic evidence. long and exacerbate the sufferif the results are in his favor and ing of crime victims and their he is exonerated of the crime families. Jennifer Thompsonfor which he was sentenced, his Cannino, who was raped when she was twenty-two DNA can be tested for other unsolved crimes. This years old, was absolutely certain that her rapist was system not only achieves further cold hits, but it also Ronald Cotton, who spent more than ten years deters defendants who have committed crimes from in jail before being exonerated by DNA testing. frivolously petitioning for testing. Thompson-Cannino, who identified Cotton in sevAdditionally, a record of the cases in which defeneral lineups, suffers from a deep sense of guilt for dants have been wrongfully convicted, incarcerated, her part in Cotton’s lost years: “Ronald Cotton and I and finally exonerated provides law enforcement offiare the same age,” she now says, “so I knew what he cials with invaluable data that can aid in the prevention had missed during those eleven years. …I live with of further wrongful convictions. Prosecutors and law constant anguish that my profound mistake cost him enforcement can analyze verdicts where post-convicso dearly.”57 tion DNA testing has overturned a sentence to recogEach time a person is wrongfully convicted, the nize trends that point to weaknesses in their investigaactual perpetrator remains free to commit more tion strategies. Correcting these weaknesses can create crimes. In forty percent of the cases handled by The a more fair and accurate criminal justice system, but Innocence Project, DNA testing both exonerates also raise the credibility of the evidence in a case. the innocent and identifies the actual perpetrator. Each DNA exoneration demonstrates that our Furthermore, “[i]n every single one of those cases, criminal justice system failed to provide justice. that perpetrator had committed violent crimes in However, it is even more important to public confi8 w w w . T H e J u S T I C e P r o J e C T. o r g THE JUSTICE PROJECT dence in the criminal justice system that the wrongfully convicted be able to make a DNA-based case. By allowing those individuals with claims of being wrongfully convicted to prove their innocence, we restore some measure of public confidence—and some measure of trustworthiness—to our criminal justice system. EDUCATION FUND testing will be front-heavy for two reasons. As preconviction DNA testing becomes standard procedure, there will be fewer defendants petitioning for relief. Because of continued technological innovation, those more recently incarcerated will certainly still petition—as they should have the right to do—but once the backlog is cleared, the influx of petitions will slow. In New York, for example, the state received petitions from only one-hundred inmates during the first seven years of its post-conviction DNA testing statute.61 In addition, as with most technology, even the most expensive DNA tests are becoming cheaper as the technology matures and becomes more widely used. Third, securing proper facilities and space for storing evidence during the length of a defendant’s incarceration will incur costs. The price of expanding the storage of forensic evidence will vary from state to state, depending on how inclusive their existing procedures of retaining evidence are. The state of Texas determined that the increased costs of an identical program would “not have any significant fiscal impact on [Department of Criminal Justice] agency operations.”62 Contrary to popular belief, not all DNA evidence requires expensive refrigeration units. Rather, most DNA evidence can be safely stored at room temperature, as long as the temperature is constant and the air is dry.63 Furthermore, because scientists can conduct DNA tests on microscopic pieces of evidence, evidence custodians only need preserve the parts of evidence that contain DNA matter. Strands of hair, swabs of fluid, and clippings from garments do not take up nearly as much room as the pounds of narcotics that many jurisdictions retain. COSTS OF REFORM The main costs of post-conviction DNA testing reform are threefold: the costs accrued by the time judges and clerks spend in court, the laboratory testing fees, and the physical space to store forensic evidence. First, it is worth mentioning that some individuals petition for DNA testing regardless of whether a law specifically provides for it. Due to the lack of clear procedure, these post-conviction DNA testing petitions require a good deal of time and resources. A strong post-conviction DNA testing statute provides courts and petitioners with guidelines to streamline and simplify the process. Thus, the cost of compensating judges and clerks for their time is more manageable than it might at first appear. Second, DNA testing costs range widely, depending on the method used. On average, the costs are surprisingly low. A representative of the Iowa Division of Criminal Investigation said that the average test, including personnel costs, can be as low as fifty dollars.59 The Virginia Department of Planning and Budget estimated that each test would cost thirty-five dollars in their fiscal analysis of a proposed post-conviction DNA testing bill.60 Most of the expense for post-conviction DNA PROFILEs OF INJUSTICE Kirk Bloodsworth’s Story A lthough no physical evidence linked him to the crime, Kirk Noble Bloodsworth was convicted of raping and murdering nine-year-old Dawn Hamilton in 1985. He was sentenced to death in Maryland and in 1993, DNA testing proved his innocence. A decade after Bloodsworth’s exoneration, the state attorney’s office finally compared DNA from the victim’s clothes to DNA in state and federal databases of convicted felons. They immediately found a match and the real killer confessed. Detectives William Ramsey and Robert Capel were in charge of investigating the rape and murder. Two boys, a ten-year-old and a seven-year-old, saw Dawn walk into the woods with a white, tall, thin, blonde, mustachioed man. Capel interviewed each boy on the evening the crime occurred. Using templates w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND of facial features, a severely limited and unreliable Bloodsworth was convicted of first degree murder, method, the ten-year-old boy helped Capel create a sexual assault, and rape on March 8, 1985, largely due composite of the man. The boy asked to change sevto eyewitness testimony. The judge sentenced him to eral features, but Capel did not call in a freelance artist death, and Bloodsworth lived on death row for more because his office wanted to release the composite than a year. to the public immediately.64 When they released the But on July 29, 1986, the Maryland Court of sketch, the detectives were inundated with tips from Appeals reversed Bloodsworth’s conviction, citing people claiming to know men resembling the suspect. the failure of the prosecution to fully comply with Most leads were never adequately pursued, including pretrial discovery laws. The prosecutors failed to one linking the man in the sketch to a man wanted for disclose information about other suspects in the case. 65 a series of rapes in the Fells Point area of Baltimore. Bloodsworth was retried, and again convicted of the Two weeks into their search, with public pressure crime he did not commit. Bob Morin, the attormounting to find the assailant, ney ultimately responsible for Ramsey and Capel had targeted Bloodsworth’s exoneration, said “Did the system work? Kirk Bloodsworth. Bloodsworth that the investigation “was not a was a former marine with no flawless investigation. But a lot I was released, but only criminal background. While he of the flaws in the investigation after eight years, eleven lived near the crime scene and all got played out in front of the months, and nineteen had left the Baltimore area shortjury, not once but twice.” 68 The ly after the crime was commitjudge in Bloodsworth’s second days, all that time ted, he was shorter, stockier, and trial sentenced him to two connot knowing whether ruddier than the description of secutive life sentences. the suspect. Ramsey and Capel Bob Morin agreed to take I would be executed or questioned and photographed Bloodsworth’s case in 1989, even whether I would spend Bloodsworth, who maintained though he knew it would be diffithe rest of my life in his innocence. When detectives cult to get another trial. In April of presented a photo spread to the 1992, Bloodsworth, who worked prison. My life had two boys, the ten-year-old idenin the prison library and had read been taken from me tified Bloodsworth, but said that about DNA testing used to solve Bloodsworth had more red in his crimes in England, urged Morin and destroyed.” hair than the man he saw with to have the evidence from the —Kirk Bloodsworth Dawn Hamilton. The sevencrime scene tested. Although the year-old did not identify any of physical evidence could have been the men.66 The identification by the ten-year-old legally destroyed after Bloodsworth’s conviction, the witness was enough for Bloodsworth to be arrested judge from Bloodsworth’s second trial had kept some and brought to trial in February of 1985. of the evidence in a cardboard box in his chambers.69 Despite extensive investigation, no physical eviMorin sent the evidence to a highly renowned DNA dence tied Bloodsworth to the crime. scientist and paid for the test out of his own pocket.70 The FBI also tested the rape kit from the crime. In April of 1993, DNA testing proved that the Although the medical examiner performing the autopsemen on Dawn Hamilton’s underwear did not come sy identified spermatozoa on the cotton swabs, the from Kirk Bloodsworth. Morin informed the state FBI forensic laboratory determined that no semen was attorney’s office of the test results, but the prosecupresent. The FBI’s serology expert made markings on tors insisted on performing their own DNA test to the victim’s underwear circling and pointing to variconfirm the results. Bloodsworth spent two additionous stains, but he was unable to detect any semen on al months in prison waiting for the state’s results. the underwear or shorts. One of the markings on the Bloodsworth was released on June 28, 1993, after underwear, a black arrow, pointed directly to the stain spending nearly nine years in prison. Even after his that exonerated Bloodsworth nine years later.67 release, the state attorney’s office did not apologize 10 w w w . T H e J u S T I C e P r o J e C T. o r g THE JUSTICE PROJECT EDUCATION FUND or acknowledge Bloodsworth’s innocence. Sandra A. DNA Testing Program, authorizes twenty-five milO’Connor, Baltimore County State’s Attorney, told lion dollars over five years to help states pay the costs reporters: “I’m not prepared to say he’s innocent. Only of post-conviction DNA testing. the people who were there know what happened.” 71 As part of his testimony before the Senate, Kirk The state’s reservations about Bloodsworth’s Bloodsworth gave voice to the grief that comes from innocence lingered an additional ten years, until wrongful conviction: September 2003. Although Maryland State Police had “Did the system work? I was released, but established a state database containing DNA samples only after eight years, eleven months, and of convicted felons from both state and federal records nineteen days, all that time not knowing in 1994, the Baltimore County whether I would be executed state’s attorney’s office failed or whether I would spend Morin informed the to submit the data from Dawn the rest of my life in prisHamilton’s case despite preson. My life had been taken state attorney’s office of sure from Kirk Bloodsworth and from me and destroyed. I the test results, but the 72 the public. When they finally was separated from my famprosecutors insisted on did, nearly twenty years after ily and branded the worst the crime and ten years after thing possible—a child killperforming their own Bloodsworth’s exoneration, they er. I cannot put into words DNA test to confirm found a match. The real killer, what it is like to live under Kimberly Ruffner, confessed these circumstances… Did the results. Bloodsworth and pled guilty to the crime. the system work? My family spent two additional Ruffner had been convicted lived through this nightmare months in prison waiting of the attempted rape and stabwith me. My father spent his bing of a woman in the Fells entire retirement savings. As for the state’s results. Point area of Baltimore in the a result, he cannot retire and summer of 1984. He was also must work on and on. My one of Kirk Bloodsworth’s fellow inmates in the mother, whom I loved and stood up for me— Maryland prison system. Ann Brobst, the attorney stood right beside me the entire time—died who had prosecuted Bloodsworth in both trials, before I was released. …I was not allowed to delivered the news to Bloodsworth. go to her funeral.” 73 In 2000, Senator Patrick Leahy of Vermont Kirk Bloodsworth now works as a program offiinvited Kirk Bloodsworth to speak before the Senate cer for The Justice Project, and spends his time travabout the Innocence Protection Act (IPA). Part of eling around the country speaking about the need for the IPA, the Kirk Bloodsworth Post-Conviction expanded post-conviction DNA testing. Clarence Elkins’ Story C larence Elkins served seven years of a life sentence for a crime he did not commit. In spite of exculpatory post-conviction DNA tests, the court denied his motion for a new trial. Elkins was finally exonerated after he mailed a cigarette butt from a fellow prisoner to his lawyer. The DNA from the cigarette matched DNA found on both victims. In June 1998, an intruder raped Clarence Elkins’ six-year-old niece, Brooke Sutton, and raped and murdered her grandmother (Elkins’ mother-in-law), Judith Johnson. When Sutton regained consciousness hours after the crime, she ran to a neighbor’s house for help. The neighbor, Tonia Brasiel, who later became part of the investigation, was slow to respond, leaving the traumatized child out on her porch before driving her home. Despite the child’s report of the murder, Brasiel failed to call the police or an ambulance.74 When Elkins’ niece finally did speak to investigators, 11 w w w . T H e J u S T I C e P r o J e C T. o r g THE JUSTICE PROJECT EDUCATION FUND she identified the murderer as “Uncle Clarence.” confirmed that Elkins’ DNA was not found in any of Detectives collected strands of hair from the the material tested. crime scene, but DNA testing proved that the hairs In March 2005, Elkins and the Ohio Innocence were not from Elkins. Vaginal swabs from Johnson Project were granted a hearing on their request for a and traces of DNA from Sutton’s underwear also new trial based on the new DNA evidence. Michael failed to link Elkins to the crime. Carroll, the Summit County assistant prosecutor, told Sutton’s eyewitness testimony was enough for reporters that “the public sentiment is that [the DNA investigators to pursue Clarence Elkins. Four days evidence] is significant, but I don’t think it is. So, I think after the attack, he was arrested and charged with it’s best we have a hearing and just air things out.” 78 murder, attempted aggravated murder, rape, and feloIn spite of the exculpatory DNA test results, in July nious assault. In May 1999, Elkins stood trial with the 2005 the court denied Elkins’ motion for a new trial. possibility of receiving the death penalty. Martin Yant and Melinda Elkins had developed Due to the lack of any physical evidence connectsuspicions about another man who was eventuing Clarence Elkins to the crime, ally charged with the crime: Earl prosecutors relied heavily upon Gene Mann. Detectives collected the testimony of Elkins’ young At the time of the crime, niece. Elkins’ attorney, Lawrence Mann was living with Tonia strands of hair from the Whitney, contended that nineBrasiel, the neighbor to whom crime scene, but DNA teen witnesses placed Elkins an Elkins’ niece fled for help. And in testing proved that the hour away from the crime on the May 2002, Earl Mann was senevening of the murder. The jury tenced to prison for raping his and hairs were not from was not convinced, and on June Brasiel’s three daughters. Melinda Elkins. Vaginal swabs 4, 1999, Elkins was convicted. He Elkins wondered if Brasiel’s odd was sentenced to life in prison. response to Brooke Sutton’s plea from Johnson and Melinda Elkins, whose belief in her for help on the morning after the traces of DNA from husband’s innocence estranged her crime was due to her boyfriend’s Sutton’s underwear from her sister and her niece, told involvement in the murder; reporters, “It was a triple tragedy for Melinda suspected that Brasiel also failed to link Elkins me. I lost my mother, my husband, had even coached the six-year-old to the crime. and my sister in one instance.” 75 victim to name “Uncle Clarence” In 2002, Elkins and his attoras her attacker.79 neys filed a motion for a new trial. Brooke Sutton, In order to prove that he committed the crime, Elkins’ niece, had recanted her testimony. The court Melinda Elkins needed a DNA sample from Mann. denied Elkins’ motion for a new trial, Elkins appealed, She even “sent some letters to Earl Mann under a and in 2003, the state upheld the denial for a new fictitious name as a pen pal, hoping he would write trial, claiming that Sutton’s initial testimony was more back to me. I had even included the envelopes,” 80 76 credible than her recantation. which she hoped Mann would lick, leaving DNA With the help of Martin Yant, a private investigatraces. He never responded. The state of Ohio had tor who specializes in wrongful convictions, Melinda Mann’s DNA profile in its massive database, but laws Elkins continued to investigate the case. When nationprohibited her from accessing it.81 al news media directed its attention to her cause, indiClarence Elkins had moral qualms about going to viduals moved by her story donated tens of thousands extreme lengths to take DNA from Mann: “I didn’t of dollars to help pay for DNA testing.77 want to point any fingers like those that had been In 2004, the Ohio Innocence Project sent evipointed at me.” 82 But one day in the summer of 2005, dence from the crime scene, including a vaginal swab Elkins saw fellow inmate Mann flick away his cigafrom the rape kit, hair and skin cells from underneath rette butt. Elkins kept the butt inside his Strong’sBible Johnson’s fingernails, and DNA from Sutton’s nightConcordance and mailed the evidence to his attorney in gown, to a laboratory for DNA testing. The results a plastic bag.83 12 w w w . T H e J u S T I C e P r o J e C T. o r g THE JUSTICE PROJECT The suspicions of Melinda Elkins were confirmed when test results identified Mann’s DNA as the same as that found on the victim. Still, the Summit County Prosecutor’s Office was not interested in hearing about the case. This led Mark Godsey, co-founder of the Ohio Innocence Project, to ask state Attorney General Jim Petro to help. Petro took the unusual step of intervening via press conference, where he urged the county to release Elkins in time for Christmas.84 Petro told reporters: “Our experience with Summit EDUCATION FUND County is they didn’t really know what DNA meant. They didn’t think of it as conclusive as we did. And I was kind of surprised at that.”85 Elkins was released on December 15, 2005. In March of the following year, he agreed to accept a little over one million dollars from the state as compensation for his wrongful conviction.86 Earl Mann pled not guilty, although two DNA tests showing that the chances that someone else committed the murder are nineteen million to one. SNAPSHOTS OF SUCCESS or her conviction, or until October 1, 2003 (whichever was later) to submit a petition for DNA testing. Evidence preservation standards were subject to the same statute of limitations. In September 2003, as the filing deadline approached, the Florida Bar issued an emergency request to the Florida Supreme Court asking for a one-year extension. The Court extended the deadline, and on May 20, 2004, the Florida Legislature passed a bill to amend the statute giving defendants four years after a conviction, or until October 1, 2005 (whichever was later) to petition for testing. But as the 2005 deadline approached, defense lawyers and petitioners were once again rushing to submit motions for DNA testing. The Miami Herald interviewed Senator Alex Villalobos, the Republican who sponsored the original DNA testing law: “‘I don’t want to just extend the deadline for two years again. We’ll just be back here again in two years.’ In the past, opponents of testing in old cases have argued that leaving the window open robs victims and their families of finality. Villalobos, a former prosecutor, disagrees. ‘If I’m a victim or the family member of a victim, I don’t have finality if the wrong person is in prison. That’s not justice for anyone.’” 88 On August 8, 2005, Governor Jeb Bush issued an executive order to prevent evidence custodians from destroying evidence that could contain DNA material. Unfortunately, the order allowed disposal of evidence if defendants failed to request testing within ninety days after the state sent written notices of pending destruction to defendants, their lawyers, prosecutors and the attorney general. CALIFORNIA In September of 2000, the California State Senate and Assembly unanimously passed, and Governor Gray Davis signed into law, a model post-conviction DNA testing statute. The law requires the state to preserve DNA evidence for the duration of a defendant’s time in prison. The petition for post-conviction DNA testing is considered regardless of the initial plea before trial, and the law stipulates that the testing should be performed at a laboratory that is “mutually agreed upon” by the district attorney and the petitioner. Finally, indigent defendants can request legal counsel, and the court may provide state-funded tests when the defendant cannot afford them. California’s statute was only the seventh in the United States providing for post-conviction DNA testing. At the time of the law’s passage, most states with post-conviction DNA testing statutes limited the opportunity to petition to defendants on death row. California’s law allows anyone convicted of a felony to petition. Furthermore, the language used to determine the standard is appropriately broad: a successful petition for DNA testing would “raise a reasonable probability that the convicted person’s verdict or sentence would be more favorable if the results of DNA testing had been available at the time of conviction.” 87 FLORIDA Florida’s post-conviction DNA testing statute passed in 2001, after two separate high-profile exonerations. The law included a strict statute of limitations: a defendant only had two years from the date of his 13 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT Finally, on June 23, 2006, Governor Bush approved the Legislature’s amendment to the post-conviction DNA testing law. The amended law imposes no time limitations for petitioners, and requires preservation of evidence throughout a defendant’s sentence. The law includes other model provisions: defendants may petition for testing regardless of their initial plea, and the state appoints counsel and pays for DNA testing if the applicant is indigent. EDUCATION FUND cence of a criminal defendant. In other cases, DNA may not conclusively establish guilt or innocence but may have significant probative value to a finder of fact. DNA evidence produced even decades after a conviction can provide a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial. DNA testing responds to serious concerns regarding wrongful convictions, especially those arising out of mistaken eyewitness identification testimony; and there is a compelling need to ensure the preservation of biological material for post-conviction DNA testing…” 89 The bill’s sponsor, Senator Ernie Chambers, introduced another bill into the Nebraska Legislature on May 21, 2007 to express “support of all efforts to learn from DNA exonerations to increase the accuracy and reliability of criminal investigations, strengthen prosecutions, protect the innocent, and enhance public safety.” 90 The bill was adopted on May 31, 2007. Nebraska’s statute does contain one major flaw: DNA evidence must only be preserved once a defendant petitions for testing. Nebraska could improve its statute by requiring all DNA-testable evidence to be preserved for all inmates for the duration of their sentences. NEBRASKA In 2001, Nebraska passed legislation allowing any person in state custody to petition for postconviction DNA testing. Nebraska’s law places no statute of limitations on petitioners. The court must appoint counsel for indigent petitioners, and the cost of DNA testing may also be provided by the state. Furthermore, evidence that could be used for DNA analysis must be preserved upon request for testing. The bill includes model language establishing the importance of post-conviction DNA testing: “Over the past decade, DNA testing has emerged as the most reliable forensic technique… Because of its scientific precision and reliability, DNA testing can, in some cases, conclusively establish the guilt or inno- VOICES OF SUPPORT “Post-conviction DNA testing is an essential safeguard that can save innocent lives when the trial process has failed to uncover the truth. But it would be neither just nor sensible to enact a law that merely expanded access to DNA testing. It would not be just because innocent people should not have to wait for years after trial to be exonerated and freed. It would not be sensible because society should not have to wait for years to know the truth. When innocent people are convicted and the guilty are permitted to walk free, any meaningful reform effort must consider the root causes of these wrongful convictions and take steps to address them.”91 “Advanced DNA testing improves the just and fair implementation of the death penalty. …[I]t is indisputable that advanced DNA testing lends support and credibility to the accuracy and integrity of capital verdicts. …All Americans—supporters and opponents of the death penalty alike—should recognize that DNA testing provides a powerful safeguard in capital cases. We should be thankful for this amazing technological development. I believe that post-conviction DNA testing should be allowed in any case in which the testing has the potential to exonerate the defendant of the crime.”92 Orrin Hatch Senior United States Senator from Utah United States Senate Committee on the Judiciary, June 13, 2000 Patrick Leahy Senior United States Senator from Vermont United States Senate, November 19, 2004 14 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND “In America, we must make doubly sure no person is held to account for a crime he or she did not commit, so we are dramatically expanding the use of DNA evidence to prevent wrongful conviction.”93 “Using DNA technology fairly and judiciously in postconviction proceedings will help those of us responsible for the administration of justice do all we can to ensure a fair process and a just result.”98 George W. Bush President of the United States State of the Union, February 2, 2005 Janet Reno Former Attorney General of the United States Post-Conviction DNA Testing: Recommendations for Handling Requests, 1999 “Nobody should have to wait for justice. …I struggled for nearly twenty years to clear my name. This legislation [The Innocence Protection Act] will prevent innocent people from ending up on death row, and it will ensure that the truly guilty are caught.”94 “What should govern on these questions is not legal precedent, not factual loopholes, but the fundamental obligation of everyone in the criminal justice system to ensure that only the factually guilty suffer in prison.”99 Kirk Bloodsworth The first death row inmate exonerated by DNA evidence The Washington Post, September 10, 2004 Peter Neufeld Co-Founder of The Innocence Project Actual Innocence, 2001 “If I’m a victim or the family member of a victim, I don’t have finality if the wrong person is in prison. That’s not justice for anyone.”95 “The [Massachusetts] DA’s office has recognized the importance, both morally and ethically, of providing a defendant some kind of meaningful access to DNA technology that could serve to exonerate him—especially when the government now relies on that very science to convict him.”100 J. Alex Villalobos Florida State Senator Miami Herald, August 7, 2005 Mark T. Lee Asst. District Attorney, Suffolk County, Massachusetts New England Law Review, Spring 2001 “Our system of justice . . . is capable of producing erroneous determinations of both guilt and innocence. A right of access to evidence for tests which . . . could prove beyond any doubt that the individual in fact did not commit the crime, is constitutionally required, I believe, as a matter of basic fairness.”96 “The Constitution requires that criminal defendants be provided with a fair trial, not merely a ‘good faith’ try at a fair trial.”101 Hon. J. Michael Luttig 4th U.S. Circuit Court of Appeals The Washington Post, March 29, 2002 Justice Harry Blackmun United States Supreme Court Arizona v. Youngblood, November 29, 1988 “Prosecutors have nothing to lose—unless they put their pride before their professionalism—in allowing post-conviction DNA requests to go forward. If the DNA test proves the defendant is guilty, then all doubts will be resolved. If it exonerates the defendant, then there is an opportunity to correct a tragic mistake and begin the search for the real criminal.”97 “[Youngblood] is the Dred Scott decision of modern times.”102 Dr. Edward T. Blake DNA scientist, Forensic Science Associates Denver Post, July 22, 2007 William Sessions Former Director of the FBI and former prosecutor The Washington Post, September 21, 2003 15 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND Questions & Answers will be able to escape the extremes of an interrogation and then prove their innocence at trial. Take for example the case of Jeff Deskovic, who falsely confessed to murder, rape, and possession of a weapon. Deskovic, then sixteen years old, believed that by telling interrogators what they wanted to hear he would not be jailed. Jurors believed his false confession despite DNA evidence presented at trial that proved he was not guilty. Deskovic spent fifteen years in prison for a crime he did not commit before subsequent DNA tests matched the murder to another man already serving time in prison for murder.105 Given the relatively low cost of DNA testing, there is no compelling reason to deny testing, regardless of a defendant’s pre-trial plea or confession. Once a statute is enacted, will the judiciary be flooded with petitions for DNA testing? This has not been the case in states with post-conviction DNA testing laws. For example, New York, which has quite liberal standards for post-conviction DNA testing, only received a total of one-hundred applications during the first seven years that its statutes were in effect.103 Furthermore, a number of different factors—the length of time evidence is preserved, and which defendants are eligible for testing, to name just two—could lead to different results. By and large, states with post-conviction DNA testing statutes did not experience an overwhelming deluge of applications after the passage of these laws. While there should be an initial increase in applications, the increasingly widespread use of pre-trial DNA analysis will likely contribute to a tapering off of demand after the initial backlog of cases is processed. Will the cost of DNA testing be too burdensome for states to achieve? The cost of a DNA test can be as little as thirty-five dollars, and even the most expensive testing still costs less than housing an inmate in prison for a year.106 It’s the cost of storing evidence that contributes most of the related expenditure, and this cost can vary widely from state to state, depending on the state’s size as well as how advanced its current evidence storage system is. California estimated it would cost about one million dollars a year, but Texas said it would not pose a “significant fiscal impact.” 107 Will post-conviction DNA testing undermine the finality of our legal system? Finality does offer closure to victims of a crime and the victims’ families. Still, the benefits to justice that post-conviction DNA tests bring are too great to ignore. DNA testing also has the benefit of increasing finality by adding a degree of certainty to the judicial process. Florida State Senator J. Alex Villalobos, a former prosecutor, argues that “If I’m a victim or the family member of a victim, I don’t have finality if the wrong person is in prison. That’s not justice for anyone.104 Is it necessary for defendants sentenced today, whose forensic evidence has already been tested, to be able to perform more DNA testing during their sentence? The number of samples analyzed should certainly decrease in the coming years, but because technology is constantly advancing, evidence that could not be previously tested can now be analyzed, and evidence that could not reveal conclusive results can often now exonerate or further inculpate the defendant.108 Likewise, some exonerees (such as the above mentioned Jeff Deskovic) were wrongfully convicted on other grounds despite the presence of exculpatory DNA evidence at trial. We should plan for future technological breakthroughs or positive matches to other persons on DNA databases now, ensuring that when DNA technology improves, we are prepared to accommodate its impact. Why should defendants who plead guilty or confessed to a crime be allowed access to DNA testing? Documented false confessions leading to wrongful convictions occur more than anyone suspected prior to DNA testing. Likewise, nearly a dozen of the over two-hundred DNA exonerees pled guilty to crimes we now know that they did not commit. While it might be difficult to accept that an innocent person might confess to a crime they did not commit, many of the reasons are well known. Intense and often extreme pressure from police interrogators, youth and vulnerability, and mental illness or handicap all leave an innocent suspect likely to confess to a crime they have not committed. Often, innocent suspects will believe that by confessing to a crime, they 16 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND A MODEL POLICY An Act Concerning Post-conviction DNA Testing 109 I. Purpose The purpose of this Act is to ensure that the innocent are protected by providing postconviction DNA testing as a means of exonerating the wrongfully convicted. Because post-conviction DNA testing is a scientifically reliable method of proving a wrongfully convicted person’s innocence: all biological evidence related to a defendant’s criminal case should be preserved; a defendant should have the right to petition for post-conviction DNA testing; courts should have procedures in place to oversee the petitioning process and order testing; counsel should be provided to indigent defendants throughout the petitioning process; discovery related to the testing of biological evidence should be disclosed; and a Task Force should be established to devise standards regarding the proper collection and retention of biological evidence. II. Scope These standards should be applied in all criminal cases where biological evidence exists. III. Definitions A. When used in this Act, “biological evidence” means the contents of a sexual assault examination kit; and/or any item that could contain blood, semen, hair, saliva, skin tissue, or other identifiable biological material from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense. This definition applies whether that material is catalogued separately (e.g., on a slide, swab, or in a test tube) or is present on other evidence (including, but not limited to, clothing, ligatures, bedding or other household material, drinking cups, cigarettes, etc.). B. When used in this Act, “DNA” means deoxyribonucleic acid. C. When used in this Act, “custody” means actual custody of a person under a sentence of imprisonment, custody of a probationer, parolee, or person on extended supervision by the department of corrections, actual or constructive custody of a person pursuant to a dispositional order, in institutional care, on conditional release, or on supervised release pursuant to a commitment order. D. When used in this Act, “profile” means a unique identifier of an individual, derived from DNA. E. When used in this Act, “state” refers to any governmental or public entity within [State] (including all entities within any city, county, or other locality) and its officials or employees, including but not limited to law enforcement agencies, prosecutors’ offices, courts, public hospitals, crime laboratories, and any other entity or individual charged with the collection, storage, and/or retrieval of biological evidence. 17 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND IV. Petition for Post-Conviction DNA Testing Notwithstanding any other provisions of law governing post-conviction relief, a person convicted of a crime and who asserts he did not commit that crime may at any time file a petition requesting forensic DNA testing of any biological evidence secured in relation to the investigation or prosecution attendant to the conviction. Persons eligible for testing include the following: A. Persons currently incarcerated, serving a sentence of probation, or who have already been released on parole; B. Persons convicted on a plea of not guilty, guilty (including “Alford” pleas), or nolo contendere; or C. Persons who have finished serving their sentences. V. Proceedings The petitioner shall be granted full, fair, and prompt proceedings upon the filing of a motion under this Act. The petitioner shall serve a copy of such a motion upon the attorney for the state. The state shall file its response to the motion within thirty days of the receipt of service. The court shall hear the motion no sooner than thirty and no later than ninety days after its filing. Once the court hears the motion, and if the court grants the petitioner’s request, testing should be performed as soon as is practicable. VI. Order for Post-Conviction Testing The court shall order testing upon the filing of a motion for post-conviction DNA testing, but only after the court provides the state with notice and an opportunity to respond and it holds a hearing on the motion in which it finds: A. A reasonable probability that DNA evidence is materially relevant to a claim of innocence or reduced culpability; B. One or more of the item(s) of evidence that the petitioner seeks to have tested still exists; C. The evidence to be tested was secured in relation to the offense underlying the challenged conviction and: 1. Was not previously subjected to DNA testing; or 2. Was previously subjected to DNA testing and can now be subjected to additional testing using new methods or technologies D. DNA testing that provides a reasonable likelihood of more probative results; and E. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence. For purposes of this Act, evidence that has been in the custody of law enforcement, other government officials, or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement of this subsection, absent specific evidence of material tampering, replacement, or alteration; and F. The application for testing is made to demonstrate innocence or the appropriateness of a lesser sentence and not solely to unreasonably delay the execution of sentence or the administration of justice. 18 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND VII. Order for Post-Conviction Comparison of Crime Scene Evidence to Forensic DNA Databases Upon motion by a petitioner, and after the state has been provided with notice and an opportunity to respond and a hearing is held; A. If the court determines any of the following to be materially relevant to a claim of innocence or a reduction in sentence: 1. The State and/or National DNA Index System, 2. Other suspects in the case, and 3. Evidence from other cases a. Is materially relevant to a claim of innocence; b. Or a match between the crime scene evidence and any DNA from items 1-3 may lead to a lesser sentence; B. The court shall order that the state crime laboratory: 1. Generate a DNA profile from specified crime scene evidence, and compare the generated DNA profile to: a. Profiles in the [State] Designated Offender DNA Database (or other appropriate state name of offender database); b. [State] crime scene evidence database; c. The National DNA Index System; d. DNA samples from other suspects in the case; and e. DNA evidence from other cases; and 2. Promptly report back to the court the results of all such DNA comparisons. VIII. Counsel The court may appoint counsel for an indigent petitioner at any time during proceedings under this Act. A. If the petitioner has filed pro se, the court shall appoint counsel for the petitioner upon a showing that DNA testing may be material to the petitioner’s claim of wrongful conviction. B. The court, in its discretion, may refer pro se requests for DNA testing to qualified parties for further review, without appointing the parties as counsel at that time. Such qualified parties may include, but shall not be limited to, indigent defense organizations or clinical legal education programs. C. If the petitioner has retained private pro bono counsel that may include, but shall not be limited to, counsel from a nonprofit organization that represents indigent persons, the court may, in its discretion, award reasonable attorney’s fees and costs at the conclusion of litigation. D. Counsel must be appointed no later than forty-five days after the date the court finds reasonable grounds or the date the court determines that the person is indigent, whichever is later. IX. Discovery A. At any time after a petition has been filed under this Act, the court may order: 1. The state to locate and provide the petitioner with any documents, 19 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND notes, logs, or reports relating to items of physical evidence collected in connection with the case or otherwise assist the petitioner in locating items of biological evidence that the state contends have been lost or destroyed; 2. The state to take reasonable measures to locate biological evidence that may be in its custody; 3. The state to assist the petitioner in locating evidence that may be in the custody of a public or private hospital, public or private laboratory, or other facility; and/or 4. The production of laboratory reports prepared in connection with the DNA testing, as well as the underlying data and the laboratory notes, if evidence had previously been subjected to DNA testing. B. If the prosecution or the petitioner previously conducted any DNA or other biological evidence testing without knowledge of the other party, such testing shall be revealed in the motion for testing or response. C. If the court orders new post-conviction DNA testing in connection with a proceeding brought under this Act, the court shall order the production of any laboratory reports prepared in connection with the DNA testing. The court may, in its discretion, also order production of the underlying data, bench notes, or other laboratory notes. D. The results of any post-conviction DNA testing conducted under this Act shall be disclosed to the prosecution, the petitioner, and the court. E. Upon receipt of a motion for post-conviction DNA testing, the state shall prepare an inventory of the evidence related to the case and issue a copy of the inventory to the prosecution, the petitioner, and the court. X. Choice of Laboratory A. If the court orders DNA testing, such testing shall be conducted by a facility mutually agreed upon by the petitioner and the state and approved by the court. B. If the parties cannot agree, the court shall designate the testing facility after providing parties with a reasonable opportunity to show cause for the court to allow testing to be performed at their preferred facility. C. The court shall impose reasonable conditions on the testing to protect the parties’ interests in the integrity of the evidence and the testing process. XI. Payment A. If a state or county crime laboratory conducts post-conviction DNA testing under this Act, the state shall bear the costs of such testing. B. If testing is performed at a private laboratory, the court may require either the petitioner or the state to pay for the testing if cause be shown by the defense and as the interests of justice require. C. If the state or county crime laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the state shall bear the costs of testing at a private laboratory that has such capabilities and is mutu20 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND ally agreeable to the petitioner and to the state. D. If, under the above subsection (C), parties are not able to agree on a laboratory, then the court shall designate the testing facility and provide parties with a reasonable opportunity to show cause for the court to pay for testing at their preferred facility. XII. Appeal The petitioner shall have the right to appeal a decision denying post-conviction DNA testing. XIII. Successive Petitions A. If the petitioner has filed a prior petition for DNA testing under this Act or any other provision of law, the petitioner may file and the court shall adjudicate a successive petition or petitions under this Act, provided the petitioner asserts new or different grounds for relief, including, but not limited to, factual, scientific, or legal arguments not previously presented, or the availability of more advanced DNA technology. B. The court may also, in its discretion, adjudicate any successive petition if the interests of justice so require. XIV. Additional Orders A. The court may in its discretion make such other orders as may be appropriate. This includes, but is not limited to, designating: 1. The type of DNA analysis to be used; 2. The testing procedures to be followed; 3. The preservation of some portion of the sample for testing replication; 4. Additional DNA testing, if the results of the initial testing are inconclusive or otherwise merit additional scientific analysis; and/or 5. The collection and DNA testing of elimination samples from third parties. B. DNA profile information from biological samples taken from any person pursuant to a motion for post-conviction DNA testing shall be exempt from any law requiring disclosure of information to the public. XV. Procedure Following Test Results A. If the results of forensic DNA testing ordered under this Act are favorable to the petitioner, the court shall schedule a hearing to determine the appropriate relief to be granted. Based on the results of the testing and any evidence or other matter presented at the hearing, the court shall thereafter enter any order that serves the interests of justice, including any of the following: 1. An order setting aside or vacating the petitioner’s judgment of conviction, judgment of not guilty by reason of mental disease or defect, or adjudication of delinquency; 2. An order granting the petitioner a new trial or fact-finding hearing; 21 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND 3. An order granting the petitioner a new sentencing hearing, commitment hearing, or dispositional hearing; 4. An order discharging the petitioner from custody; 5. An order specifying the disposition of any evidence that remains after the completion of the testing; 6. An order granting the petitioner additional discovery on matters related to DNA test results or the conviction or sentence under attack, including, but not limited to, documents pertaining to the original criminal investigation or the identities of other suspects; and/or 7. An order directing the state to place any unidentified DNA profile(s) obtained from post-conviction DNA testing into state and/or federal databases. B. If the results of the tests are not favorable to the petitioner, the court: 1. Shall dismiss the petition; and 2. May make any further orders that are appropriate, including those that: a. Provide that the parole board or a probation department be notified of the test results; b. Request that the petitioner’s DNA profile be added to the state’s convicted offender database; c. Provide that the victims be notified of both the application for DNA testing and the results. XVI. Consent A. Nothing in this Act shall prohibit a convicted person and the state from consenting to and conducting post-conviction DNA testing by agreement of the parties, without filing a motion for post-conviction DNA testing under this Act. B. Notwithstanding any other provision of law governing post-conviction relief, if DNA test results are obtained under testing conducted upon consent of the parties which are favorable to the petitioner, the petitioner may file and the court shall adjudicate, a motion for post-conviction relief based on the DNA test results under section XV of this Act. XVII. Standards and Training of Evidence Custodians A. From appropriations made for that purpose, a statewide Task Force comprised of members appointed by the Governor; the Attorney General; the state’s District and County Attorneys Association; the state’s Criminal Defense Lawyers Association; the state’s Bar Association; the Judiciary/ Criminal Justice Committee of the [State] Senate; the Judiciary/Criminal Justice Committee of the [State] House of Representatives; the Chief Justice of the Supreme Court; the chancellor of the State University system; the [state] property clerk’s association; and the State Police, shall devise standards regarding the proper collection and retention of biological evidence; and B. The Division of Criminal Justice Services shall administer and conduct training programs for law enforcement officers and other relevant employees that 22 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND are charged with preserving biological evidence regarding the methods and procedures referenced in this Act. XVIII. Preservation of Evidence A. Notwithstanding any other provision of law, every appropriate governmental entity shall retain each item of physical evidence that may contain biological material secured in connection with a criminal case in the amount and manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence for the period of time that any person connected to that case, including any co-defendant(s) convicted of the same crime, remains incarcerated, on probation or parole, civilly committed, or subject to registration as a sex offender. B. This Act applies to evidence that: 1. Was in the possession of the state during the investigation and prosecution of the case; and 2. At the time of conviction was likely to contain biological material. C. This requirement shall apply with or without the filing of a petition for postconviction DNA testing, and to pleas of not guilty, guilty (including “Alford” pleas), or nolo contendere. D. In cases where a petition for post-conviction DNA testing has been filed under this Act, the state shall prepare an inventory of the evidence related to the case and submit a copy of the inventory to the petitioner and the court. 1. If evidence is intentionally destroyed after the filing of a petition under this Act, the court may impose appropriate sanctions on the responsible party or parties. 2. If the court finds that evidence was intentionally destroyed in violation of the provisions of this statute, it shall consider appropriate remedies. 3. If the court determines that evidence was destroyed in violation of any of the provisions of this statute, the court may impose appropriate sanctions and/or remedies for noncompliance such as contempt, granting a new trial, dismissal of charges, and/or sentence reduction or modification. E. Should the state be called upon to produce biological evidence that could not be located and whose preservation was required under the provisions of this statute, the evidence custodian assigned to the entity charged with the preservation of said evidence shall provide an affidavit in which he describes, under penalty of perjury, the efforts taken to locate that evidence and that the evidence could not be located. XIX. Development of Centralized Tracking System The statewide Task Force shall also make recommendations for a statewide centralized tracking system for all biological evidence in the state’s possession. The system shall allow evidence connected to both open cases and post-conviction DNA testing cases to be located expeditiously. 23 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND STATISTICS A s of June 2008, over two-hundred people have been exonerated with DNA evidence. The first in-depth study of the first two hundred individuals exonerated by DNA testing found that “[m]ore than one quarter of all post-conviction DNA exonerations (fifty-three) occurred in cases where DNA was available at the time of the criminal trial” (after 1990).110 Reasons for these wrongful convictions include advances in DNA technology since the time of trial, forensic fraud, the failure of defense counsel to request DNA testing, conviction despite DNA exclusion, and court denial of the DNA testing request. The study found that “courts denied at least twelve exonerees relief despite at least preliminary DNA test results excluding them; each was later exonerated after an executive or higher court grant- ed relief. Forty-one (twenty-one percent) received a pardon from their state executive, often because they lacked any available judicial forum for relief.” 111 The study notes that “[t]he demographics of the group are not representative of the prison population, much less of the general population.” 112 It describes the group as all male save one, with twenty-two juveniles, twelve mentally handicapped people, one-hundred twenty-four black, and seventeen Hispanic exonerees. Seventy-three percent of those proven innocent of rape are black or Hispanic, while only about “thirty-seven percent of all rape convicts are minorities.” 113 According to The Innocence Project, the real perpetrator has been identified in eighty-two of the first 218 DNA exoneration cases. 114 Literature SUGGESTED READINGS 1. Journals and Law Reviews The following materials are recommended reading for individuals interested in enhancing their knowledge of post-conviction DNA testing. Boemer, Jennifer. “In the Interest of Justice: Granting Post-Conviction Deoxyribonucleic Acid (DNA) Testing to Inmates.” William Mitchell Law Review 27 (2001): 1971-2001. Christian, Karen. “ ‘And the DNA Shall Set You Free’: Issues Surrounding Post-conviction DNA Evidence and the Pursuit of Innocence.” Ohio State Law Journal 62 (2001): 1195-1241. Garrett, Brandon L. “Judging Innocence.” Columbia Law Review 108 (January 2008): 55-142. Jones, Cynthia. “Evidence Destroyed, Innocence Lost.” American Criminal Law Review 42 (Fall 2005): 1239-70. Schaffter, Holly. “Post-conviction DNA Evidence: A 500 pound Gorilla in State Courts.” Drake Law Review 50 (2002): 695-738. Moffeit, Miles and Susan Greene. Four-part series on destroyed evidence. The Denver Post, July 2226, 2007. Christian, Karen. “ ‘And the DNA Shall Set You Free’: Issues Surrounding Post-conviction DNA Evidence and the Pursuit of Innocence.” Ohio State Law Journal 62 (2001): 1195-1241. DeFoore, David. “Post-conviction DNA Testing: A Cry for Justice from the Wrongly Convicted.” Texas Tech Law Review 33 (2002): 491-528. Garrett, Brandon L. “Judging Innocence.” Columbia Law Review 108 (January 2008): 55-142. Goldberg, Judith A. and David M. Siegel. “The Ethical Obligations of Prosecutors in Cases Involving Post-conviction Claims of Innocence.” California Western Law Review 38 (Spring 2002): 389-412. SELECTED BIBLIOGRAPHY The following listing includes some of the key source material used in developing the content of this policy review. While by no means an exhaustive list of the sources consulted, it is intended as a convenience for those wishing to engage in further study on the topic of post-conviction DNA testing. Good, Andrew. “Litigating for Access to Samples and Funding in Cases in Which DNA Results will be Probative, but Not Dispositive of Innocence.” New England Law Review 35 (Spring 2001): 649-655. 24 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT Kanon, Diana L. “Will the Truth Set Them Free? No, But the Lab Might: Statutory Responses to Advancements in DNA Technology.” Arizona Law Review 44 (Summer 2002): 467-94. Kreimer, Seth F. and David Rudovsky. “Double Helix, Double Bind: Factual Innocence and Post-conviction DNA Testing.” University of Pennsylvania Law Review 151 (December 2002): 547-617. Lee, Mark. “The Impact of DNA Technology on the Prosecutor: Handling Motions for PostConviction Relief.” New England Law Review 35 (Spring 2001): 663-67. Meier, David. “The Prosecution’s Perspective on Post-Conviction Relief in Light of DNA Technology and Newly Discovered Evidence.” New England Law Review 35 (Spring 2001): 657-61. Neufeld, Peter. “Legal and Ethical Implications of Post-Conviction DNA Exonerations.” New England Law Review 35 (Spring 2001): 639-46. Ritter, Hillary S. “It’s the Prosecution’s Story, but They’re Not Sticking to It: Applying Harmless Error and Judicial Estoppel to Exculpatory Post-Conviction DNA Testing Cases.” Fordham University Law Review 74 (November 2005): 825-70. Ruga, Dylan. “Federal Court Adjudication of State Prisoner Claims for Post-Conviction DNA Testing: A Bifurcated Approach.” Pierce Law Review 2 (March 2004): 35-55. Saks, Michael J. et al. “Toward a Model Act for the Prevention and Remedy of Erroneous Convictions.” New England Law Review 35 (Spring 2001): 669-83. Schaffter, Holly. “Post-conviction DNA Evidence: A 500 pound Gorilla in State Courts.” Drake Law Review 50 (2002): 695-738. Swedlow, Kathy. “Don’t Believe Everything You Read: A Review of Modern ‘Post-Conviction’ DNA Testing Statutes.” California Western Law Review 38 (Spring 2002): 355-87. Weiers, Jennifer L. and Marc R. Shapiro. “The Innocence Protection Act: A Revised Proposal for Capital Punishment Reform.” N.Y.U. Journal of Legislation and Public Policy 6 (2002/2003): 615-33. EDUCATION FUND 2. Commission and Association Reports & Policies American Bar Association. Evaluating Fairness and Accuracy in State Death Penalty Systems: The Georgia Death Penalty Assessment Report. American Bar Association, 2006. The Library of Congress, Congressional Research Service. The Advancing Justice Through DNA Technology Act of 2003 (H.R. 3214): A Section-bySection Analysis, by Estela I. Pollack. Washington, DC: GPO, 1996. National Center for State Courts, Knowledge and Information Services. Post-conviction DNA Testing: Recommendations to the Judiciary from the National Commission on the Future of DNA Evidence, by Karen Gottlieb. National Center for State Courts, 2000. http://www.ncsconline.org/WC/ Publications/KIS_SciEvd_Trends99-00_Pub.pdf (accessed June 23, 2008). U.S. Department of Justice. Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, by Edward Connors, Thomas Lundregan, Neal Miller, and Tom McEwen. Washington, DC: GPO, 1996. U.S. Department of Justice, National Commission on the Future of DNA Evidence. Post-conviction DNA Testing: Recommendations for Handling Requests. Washington: Government Printing Office, 1999. 3. Miscellaneous Berger, Margaret A. “Lessons From DNA: Restriking the Balance Between Finality and Justice.” In DNA and the Criminal Justice System: The Technology of Justice, edited by David Lazer, 109-31. Cambridge: MIT Press, 2004. Bieber, Frederick R. “Science and Technology of Forensic DNA Profiling: Current Use and Future Directions.” In DNA and the Criminal Justice System: The Technology of Justice, edited by David Lazer, 23-62. Cambridge: MIT Press, 2004. Jacobi, Tonja and Gwendolyn Carroll. “Acknowledging Guilt: Forcing Self-Identification in Post-Conviction DNA Testing.” Northwestern University School of Law, Law and Economics Research Paper Available at SSRN: http://ssrn. com/abstract=963642 (accessed June 23, 2008). 25 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND Endnotes 1 The 18 Innocence Protection Act of 2004, 18 U.S.C.A §§ 3600, 3600A and 42 U.S.C.A. § 14163 (West, WestLaw through 2008 Pub. L. 110-244), was passed as part of the Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (codified as amended in scattered sections of 18 U.S.C.A and 42 U.S.C.A. (West, WestLaw through 2008 Pub. L. 110-244)). 2 As of June 2008, funding for this program has not yet been distributed to states. 3 Alabama, Alaska, Massachusetts, Mississippi, South Carolina, and South Dakota lack statutes allowing post-conviction DNA testing. Oklahoma’s statue expired in 2005. Wyoming passed a post-conviction DNA testing law in March of 2008 that will go into effect on July 1, 2008. 4 Solomon Moore, Exoneration Leads to Change in Legal System, N.Y. Times, Oct. 1, 2007, at A1. See infra note 7 for states that sufficiently require preservation of evidence. 5 Idaho Code Ann. § 19-4902 (West, WestLaw through 2008 Chs. 1-410). 6 Cynthia Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence Under Innocence Protection Statutes, 42 Am. Crim. L. Rev. 1239, 1239-40 (2005). 7 Ariz. V. Youngblood, 488 U.S. 51, 58 (1988). 8 States that require preservation of evidence throughout a person’s incarceration are California, Cal. Penal Code § 1417.9 (West, WestLaw through 2008 Ch. 31); Connecticut, Conn. Gen. Stat. Ann. §54-102jj(b) (West, WestLaw through 2008 Supplement to the Connecticut General Statutes); Florida, Fla. Stat. Ann. § 925.11(4)(a) (West, WestLaw through 2008 2d Reg. Sess.); Hawaii, Haw. Rev. Stat. §844D-126(a) (West, WestLaw through 2007 3d Spec. Sess.); Maryland, Md. Code Ann., Crim. Proc. § 8-201(i)(2) (West, WestLaw through 2008 Reg. Sess.); Michigan, Mich. Comp. Laws Ann. § 770.16(11) (West, WestLaw through P.A. 2008, No. 162); Minnesota, Minn. Stat. Ann. § 590.10 (West, WestLaw through 2008 Reg. Sess.); New Hampshire, N.H. Rev. Stat. Ann. § 651-D:3(II) (West, WestLaw through 2008 Ch. 24); New Mexico, N.M. Stat. Ann. § 31-1A2(L) (West, WestLaw through laws effective May 14, 2008, 2d Reg. Sess.); Rhode Island, R.I. Gen. Laws § 10- 9.1-11(a) (West, WestLaw through 2007 legislation); Texas, Tex. Crim. Proc. Code Ann. art. 38.43 (Vernon, WestLaw through 2007 Reg. Sess.); Wisconsin, Wis. Stat. Ann. § 978.08(2) (West, WestLaw through 2007 Act 24); and Washington, DC, DC Code Ann. § 22-4134(a) (West, WestLaw through May 12, 2008). 9 Peter Neufeld, Legal and Ethical Implications of Post-Conviction DNA Exonerations, 35 New Eng. L. Rev. 639, 641 (2001). 10 See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 60, 74 (2008) (providing numbers of DNA exonerees who falsely confessed and accepted plea bargains). 11 Id. at 74; The Innocence Project, News and Information: Fact Sheets, http://www.innocenceproject.org/Content/351.php (last visited June 19, 2008). 12 Junkin, infra note 64, at 245. 13 Frederick R. Bieber, Science and Technology of Forensic DNA Profiling: Current Use and Future Directions, in DNA and the Criminal Justice System 23, 28-36 (David Lazer, ed., 2004). 14 See Karen Christian, “And the DNA Shall Set you Free”: Issues Surrounding Post-conviction DNA Evidence and the Pursuit of Innocence, 62 Ohio St. L.J. 1195, 1208-14, 1241 (2001) (discussing the inconsistency of post-conviction DNA testing among states without statutes and the need for a consistent approach). See also Rachel Steinback, The Fight For Post-Conviction DNA Testing is Not Yet Over: An Analysis of the Eight Remaining “Holdout States” and Suggestions for Strategies to Bring Vital Relief to the Wrongfully Convicted, 98 J. Crim. L. & Criminology 329, 339-342 (discussing the problems with nonstatutory approaches to securing post-conviction DNA testing). 15 Innocence Protection Act of 2004, 18 U.S.C.A. § 3600(a)(8)(B). 16 150 Cong. Rec. S11611 (statement of Sen. Leahy). 17 Michael Bromwich, Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room (2007) at 114. One recent case, reported on October 3, 2007, involves inmate Ronald Taylor. An HPD analyst had testified at his original trial that no semen was present at the crime scene. Recent tests, however, have shown that testimony to be false. The semen at the scene matches the DNA of a convicted felon already in jail. Taylor was exonerated in January 2008. Indictment Dismissed Against Houston Man Cleared by DNA Testing, Associated Press St. & Loc. Wire, Jan. 15, 2008, at State and Regional. 19 Justice for All Act of 2004, Pub. L. No. 108-405, § 306, 118 Stat. 2260, 2274-75 (codified as amended at 42 U.S.C.A. § 14136c (West, WestLaw through 2008 Pub. L. 110-244)); Justice for All Act of 2004, § 302, 118 Stat. 2260, 2272-73 (codified as amended at 42 U.S.C.A. § 14132 (West, WestLaw through 2008 Pub. L. 110-244)). 20 Forensics laboratories in Arkansas are supervised by an appointee of the governor, while Maryland’s forensics laboratories are under the Maryland Department of Health and Mental Hygiene. Virginia also utilizes independent laboratories. Alabama utilizes an autonomous Department of Forensic Services, but its head is appointed by the Attorney General rather than the governor. Ark. Code Ann. § 12-12-304 (West, WestLaw through 2008 First Exec. Sess.); Md. Code Ann., Health-Gen § 17-2A-02 (West, WestLaw through all chapters of 2008 Reg. Sess. effective through June 1, 2008); Va. Code Ann. § 9.1-1100 (West, WestLaw through 2007 Reg. Sess.); and Ala. Code § 36-18-1 (West, WestLaw through Act 2008-270). 21 N.C. Gen. Stat. Ann. § 15A-269 (e) (West, WestLaw through 2007 Reg. & Exec. Sess.). 22 Nat’l Comm’n on the Future of DNA Evidence, U.S. Dep’t Justice, Post-Conviction DNA Testing: Recommendations for Handling Requests 45-50 [hereinafter Nat’l Comm’n] (2001). 23 When is Justice Served?: Hearing Before the S. Comm. on the Judiciary, 106th Cong. 104 (2000) [hereinafter Hearing] (testimony of Barry Scheck). 24 Garrett, supra note 10, at 120. 25 Nat’l Inst. Justice, U.S. Dep’t Justice, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence after Trial (1996). 26 Nat’l Comm’n, supra note 22, at 43. 27 Seth F. Kreimer and David Rudovsky, Double Helix, Double Bind: Factual Innocence and Post-conviction DNA Testing, 151 U. Pa. L. Rev. 547, 557 (2002). 28 Christian, supra note 14, at 1228; Justice for All Act of 2004, Pub. L. No. 108-405, § 411, 118 Stat. 2260, 2278-84 (codified as amended at 18 U.S.C.A. §§ 3600-3600a (West, WestLaw through 2008 Pub. L. 110-244)). 29 Innocence Protection Act of 2004, supra note 1. 30 Justice for All Act of 2004, Pub. L. No. 108-405, § 411, 118 Stat. 2260, 2278-84. 31 Justice for All Act of 2004 § 412, 118 Stat. at 2284-85. 32 Cal. v. Trombetta, 467 U.S. 479 (1984); Ariz. v. Youngblood, 488 U.S. 51 (1988). 33 Trombetta, 467 U.S. at 488-89. 34 Youngblood, 488 U.S. at 57-58. 35 Id. at 58. 36 Id. at 66 (Blackmun, J., dissenting). 37 Susan Greene & Miles Moffeit, Trashing the Truth: Destruction of Evidence, Denver Post, July 22, 2007, at A1. 38 Harvey v. Horan, 278 F.3d 370, 372 (4th Cir. 2002). 39 Civil Action for Deprivation of Rights, 42 U.S.C.A. § 1983 (West, WestLaw through 2008 Pub. L. 110-244). 40 Harvey, 278 F.3d at 376. 41 Id. 42 Dabbs v. Vergari, 570 N.Y.S.2d 765, 767 (1990). 43 Id. 44 People v. Dabbs, 587 N.Y.S.2d 90, 91 (N.Y. Sup. Ct. 1991). 45 People v. Callace, 673 N.Y.S.2d 137, 138 (N.Y. Co. Ct. 1991). 46 State v. Thomas, 586 A.2d 250, 252 (N.J. Super. Ct. App. Div. 1991). 26 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT 47 EDUCATION FUND 80 Sewell v. State, 592 N.E.2d 705, 706-08 (Ind. Ct. App. 1992). Commonwealth v. Bison, 618 A.2d 420, 425-26 (Pa. Super. Ct. 1992). 49 Whitsel v. State, 525 N.W.2d 860, 863 (Iowa 1994). 50 Id. at 863-64. 51 People v. Kellar, 605 N.Y.S.2d 486, 486 (App. Div. 1993). 52 People v. Washington, 665 N.E.2d 1330, 1336-37 (Ill. 1996). 53 Jenner v. Dooley, 590 N.W.2d 463, 472 (S.D. 1999). 54 Id. at 466. 55 Id. at 472. 56 Mary McCarty & Laura A. Bischoff, My God, This Thing is Horrifying, Dayton Daily News, Aug. 8, 2006, at A6. 57 Jennifer Thompson, Op-Ed., I Was Certain, But I Was Wrong, N.Y. Times, June 18, 2000, § 4, at 15. 58 Adam Liptak, Study of Wrongful Convictions Raises Questions Beyond DNA, N.Y. Times, July 23, 2007, at A1. 59 Holly Schaffter, Post-conviction DNA Evidence: A 500 Pound Gorilla in State Courts, 50 Drake L. Rev. 695, 735 (2002). 60 Virginia Department of Planning and Budget, 2001 Fiscal Impact Statement, Storage and Testing of Certain Evidence, Writ of Actual Innocence, Mar. 7, 2001, http://leg1.state.va.us/cgi-bin/legp504.exe?ses=011 &typ=bil&val=SB1366 (follow “impact statement” hyperlink adjacent to “Bill text as passed Senate and House (SB1366ER)”). 61 Margaret A. Berger, Lessons from DNA: Restriking the Balance Between Finality and Justice, in DNA and the Criminal Justice System, supra note 13, at 109, 115. 62 National Conference of State Legislatures, Comparison of State Post Conviction DNA Laws, http://www.ncsl.org/programs/health/genetics/ DNAchart.htm (last visited June 20, 2008). 63 California Senate Bill 1342 Task Force, Post-conviction DNA Testing Task Force Final Report, http://ag.ca.gov/publications/finalproof.pdf (last visited June 17, 2008). 64 Tim Junkin, Bloodsworth 46 (2005). 65 Id. at 53. 66 Id. at 91. 67 Id. at 283. 68 Raju Chebium, Kirk Bloodsworth: Twice Convicted of Rape and Murder, Exonerated by DNA Evidence, CNN, June 6, 2000, http://archives.cnn. com/2000/LAW/06/20/bloodsworth.profile/index.html. 69 Jones, supra note 6, at 1245; Junkin, supra note 64, at 245. 70 Chebium, supra note 68. 71 Stephanie Hanes, DNA That Freed Man Leads to New Suspect; Killing: Kirk Bloodsworth, Convicted and Then Cleared in the Rape-Murder of a Child, Learns a Man He Knew in Prison is Charged with the Crimes, Balt. Sun, Sept. 23, 2003, at 1A. 72 Susan Levine, Death Row Inmate Hears Hoped-for Words: We Found Killer, Wash. Post, Sept. 6, 2003, at A1. 73 Junkin, supra note 64, at 268. 74 Deborah Rieselman, Wrongfully Imprisoned Man Thanks UC Students for Freedom, U. Cin. Mag., http://www.magazine.uc.edu/exclusives/elkins.htm (last visited on June 19, 2008). 75 Phil Trexler, Girl’s Story Again Key, This Time in Bid to Free Uncle Convicted in 1998 Slaying, Akron Beacon J., May 24, 2002, at A1. 76 State v. Elkins, No 21380, 2003 WL 22015409, at 4-5 (Ohio App. 9th Aug. 27, 2003). 77 Phil Trexler, Woman’s Lonely Battle is Won at Last; Melinda Elkins Lost Her Mother to Murder, Her Husband to Injustice, and Her Sister to Suspicion. Now Comes Healing, Akron Beacon J., Dec. 22, 2005, at A1. 78 Phil Trexler, Judge Grants Request for Feb. 23 Hearing over New DNA Evidence in 1998 Slaying, Akron Beacon J., Dec. 29, 2004, at B1. 79 Rieselman, supra note 74. Cynthia Bowers, Wife’s Detective Work Frees Hubby, CBS News, Dec. 20, 2005, http://www.cbsnews.com/stories/2005/12/20/earlyshow/main1140199. shtml. 81 McCarty & Bischoff, supra note 56. 82 Rieselman, supra note 74. 83 Id. 84 McCarty & Bischoff, supra note 56. 85 Id. 86 Phil Trexler, Ohio to Settle Elkins Lawsuit: Local Man Exonerated in 1998 Murder, Rape to Get $1.075 Million for His Years in Prison, Akron Beacon J., Mar. 31, 2006, at A1. 87 Cal. Penal Code § 1405(c)(1)(B) (West, WestLaw through 2008 Reg. Sess. Ch. 31 & 2007-2008 Third Exec. Sess. Ch. 7). 88 Lisa Arthur & Jay Weaver, DNA Testing Deadline Challenged, Miami Herald, Aug. 7, 2005, at B2. 48 89 Neb. Rev. Stat. § 29-4118 (2001). L.R. 214, 100th Leg., 1st Reg. Sess. (Neb. 2007). 91 150 Cong. Rec. S11612 (statement of Sen. Leahy). 92 Hearing, supra note 23, at 2 (statement of Sen. Orrin Hatch). 93 Address Before a Joint Session of the Congress on the State of the Union, 41 Weekly Comp. Pres. Doc. 126, 130 (Feb. 2, 2005). 94 Mary Fitzgerald, Victims Push for DNA Bill on Hill, Wash. Post, Sept. 10, 2004, at A27. 95 Arthur & Weaver, supra note 88. 96 Brooke Masters, Two Conservative Jurists Back DNA Testing, Wash. Post, Mar. 29, 2002, at A7. 97 William Sessions, Op-Ed., DNA Tests Can Free the Innocent. How Can We Ignore That?, Wash. Post, Sept. 21, 2003, at B2. 98 Nat’l Comm’n, supra note 22, at iii. 99 Barry Scheck et al., Actual Innocence 247-48 (2001). 100 Mark Lee, The Impact of DNA Technology on the Prosecutor: Handling Motions for Post-Conviction Relief, 35 New Eng. L. Rev. 663, 664 (2001). 101 Ariz. v. Youngblood, 488 U.S. 51, 66 (1988) (Blackmun, J., dissenting). 102 Greene & Moffeit, supra note 37. 103 Berger, supra note 61, at 115. 104 Arthur & Weaver, supra note 88. 105 Fernanda Santos, DNA Evidence Frees a Man Imprisoned for Half His Life, N.Y. Times, Sept. 21, 2006, at B1; The Innocence Project, Know the Cases: Jeff Deskovic, http://www.innocenceproject.org/Content/44.php (last visited June 20, 2008). 106 Christian, supra note 14, at 1236. 107 National Conference of State Legislatures, supra note 62. 108 Bieber, supra note 13, at 27. 109 Elements of this model policy were inspired by, or taken from, the following sources: 18 U.S.C.A. § 3600 (West, WestLaw through 2008 Pub. L. 110244); The Innocence Project, An Act Concerning Access to Post-Conviction DNA Testing, http://www.innocenceproject.org/docs/Model_Statute_ Postconviction_DNA.pdf (last visited on June 17, 2008); The Innocence Project, “An Act to Improve the Preservation and Accessibility of Biological Evidence,” http://www.innocenceproject.org/docs/Preservation_Evidence_ Prescriptive_08.pdf (last visited on June 17, 2008); and Nina Morrison, Essential Elements of Postconviction DNA Testing Statutes, Innocenceproject. org, Oct. 2, 2003, http://www.innocenceproject.org/docs/IP_Legislation_ Memorandum.html. 110 Garrett, supra note 10, at 130. 111 Id. at 120. 112 Id. at 66. 113 Id. at 67. 114 The Innocence Project, supra note 11. 90 27 w w w . T h e J u stic e P r o j e ct. o r g THE JUSTICE PROJECT EDUCATION FUND Working to Increase Fairness and Accuracy in the Criminal Justice System ABOUT THE JUSTICE PROJECT The.Justice.Project.is.comprised.of.two. nonpartisan.organizations.dedicated.to.fighting. injustice.and.to.creating.a.more.humane.and. just.world..The.Justice.Project,.Inc.,.which. lobbies.for.reform,.and.The.Justice.Project. education.Fund,.which.increases.public. awareness.of.needed.reforms,.work.together. on.the.Campaign.for.Criminal.Justice.reform.to. reaffirm.America’s.core.commitment.to.fairness. and.accuracy.by.designing.and.implementing. national.and.state-based.campaigns.to.advance. reforms.that.address.significant.flaws.in.the. American.criminal.justice.system,.with.particular. focus.on.the.capital.punishment.system. . THE JUSTICE PROJECT STAFF John F. Terzano President Joyce A. McGee executive.Director Robert L. Schiffer executive.Vice.President Kirk Noble Bloodsworth Program.officer Jeff Miller Director.of.Communications Jane Ryan Director.of.Development Edwin Colfax Director.of.State.Campaigns Rosa Maldonado Director.of.Finance.and.Administration Daniel Aaron Weir Director.of.National.Campaigns Michelle Strikowsky Communications.Coordinator Leah Lavin Development.Associate Joseph House Communications/Development.Associate Lauren Brice office.Manager For.information.on.ordering.additional. copies.of.this.policy.review,.contact. The.Justice.Project.at.(202).638-5855. or.info@thejusticeproject.org 1025.Vermont.Avenue,.Nw,.Third.Floor washington,.DC.20005 (202).638-5855.•.Fax.(202).638-6056 www.thejusticeproject.org ©2008.The.Justice.Project.—.All.rights.reserved. NATIONAL AGENDA FOR REFORM The Justice Project (TJP) has developed a national program of initiatives designed to address and affect the policies and procedures that perpetuate errors and contribute to the conviction and incarceration of innocent people, especially within the death penalty system. As such, TJP advocates for 1) improvements in eyewitness identification procedures; 2) electronic recording of custodial interrogations; 3) higher standards for admitting snitch or accomplice testimony at trial; 4) expanded discovery in criminal cases; 5) improvements in forensic testing procedures; 6) greater access to post-conviction DNA testing; 7) proper standards for the appointment and performance of counsel in capital cases; and 8) safeguards against prosecutorial misconduct. As part of its efforts to increase fairness and accuracy in the criminal justice system, TJP is developing comprehensive policy reviews on each of the eight reform initiatives outlined above. The policy reviews are designed to bridge the education gap and provide the necessary information with which policymakers, legal and law enforcement practitioners, advocates, and other stakeholders learn about the best practices within these reform areas, the reasoning behind small yet important changes in procedure, their practical effect, and the costs and benefits of implementation. For more information, please visit www.thejusticeproject.org. ACKNOWLEDGEMENTS The Justice Project would like express special thanks to the following people for their contributions in developing this policy review: Karen Daniel, CenteronWrongfulConvictionsat NorthwesternUniversitySchoolofLaw Brandon L. Garrett, TheUniversityofVirginiaSchoolofLaw Stephen Saloom, TheInnocenceProject David M. Siegel, NewEnglandSchoolofLaw The Justice Project’s former and current interns: Megha Desai, Rebecca Estes, Stephanie Gladney, Liz Gottmer, Dardi N. Harrison, Delia Herrin, Abby Hexter, Alanna Holt, Eric James, Rosa Malley, Fiona McCarrick, Sarah Nash, Kate Ory, David Seitzer, and Margaret Tucker. “Law’s evolution is never done, and for every improvement made there is another reform that is overdue.” — J ustice W illiam J. B rennan , J r . The Justice Project is comprised of two nonpartisan organizations dedicated to fighting injustice and to creating a more humane and just world. The Justice Project, Inc., which lobbies for reform, and The Justice Project Education Fund, which increases public awareness of needed reforms, work together on the Campaign for Criminal Justice Reform to reaffirm America’s core commitment to fairness and accuracy by designing and implementing national and state-based campaigns to advance reforms that address significant flaws in the American criminal justice system, with particular focus on the capital punishment system. This report is made possible primarily through a grant from The Pew Charitable Trusts to The Justice Project Education Fund. The opinions expressed are those of the author(s) and do not necessarily reflect . the views of the Trusts. For additional information, questions or comments, . please contact our offices at (202) 638-5855, or email info@thejusticeproject.org. THE JUSTICE PROJECT EDUCATION FUND Working to Increase Fairness and Accuracy in the Criminal Justice System 1025 Vermont Avenue, NW • Third Floor • Washington, DC 20005. (202) 638-5855 • Fax (202) 638-6056 • www.thejusticeproject.org